Vitor José Ferreira do Couto
Lawyer at Marcos Martins Advogados
In a recent ruling, the São Paulo State Court of Appeals[1] upheld a lower court judge’s decision confirming the validity of a clause in a judicial reorganization plan that provides for the possibility of offsetting creditors who have debts with the company being reorganized.
In the specific case, the 2nd Chamber of Business Law held that the aggravating bank’s claim that the aforementioned clause providing for offsetting would violate par conditio creditorium would be a generic argument, especially considering that the judicial reorganization plan was approved by an overwhelming majority.
In other words, the plan and all the clauses relating to the reorganization of the company were approved, and it is certain that the Judiciary could not intervene in such a decision by the creditors, including citing Enunciation No. 46 of the 1st CJF/STJ Commercial Law Conference:
“It is not for the judge to fail to grant judicial reorganization or to homologate extrajudicial reorganization based on the economic-financial analysis of the reorganization plan approved by the creditors.”
In addition, the defendant’s argument was that the provision for the possibility of offsetting in the reorganization plan was just a formality, since there is a legal provision in article 368 of the Civil Code authorizing offsetting.
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[1] TJSP – Interlocutory Appeal No. 2024346-49.2021.8.26.0000
